Echoes of YouTube: PornoTube sued for copyright infringement

Vivid Entertainment Group has sued the parent companies of PornoTube, YouTube' …

One of the world's largest porn producers has decided to fight back against what it believes is rampant copyright infringement on the part of PornoTube—YouTube's smutty evil twin. Vivid Entertainment Group filed a lawsuit against PornoTube's parent companies, Data Conversions, Inc. (which operates as AEBN) and WMM, LLC, alleging that they violate a number of laws related to both intellectual property and age recordkeeping of adult performers.

Not unlike Viacom's case against YouTube, Vivid says that PornoTube has "used technological advancements to willfully infringe copyrights," and that PornoTube's entire business plan revolves around the uploading of copyrighted works owned by Vivid and others. This, of course, has resulted in great monetary loss, according to Vivid, which says that such injury cannot be fully measured.

Also like Viacom, Vivid has no desire to play the DMCA takedown game that we have become so familiar with in relation to YouTube. "Vivid should not have to take responsibility for policing PornoTube on a minute by minute basis to protect its rights," Vivid's attorney Paul Cambria said in a statement. "Vivid has already found dozens of violations of its copyrights, and AEBN needs to know that it cannot continue pilfering Vivid’s products no matter how they might reformat or reshape it."

In addition to copyright infringement, Vivid also says that PornoTube and its parent companies have failed to comply with US Code 2257 (also known as the Child Protection and Obscenity Enforcement Act), which says that porn producers must keep up-to-date age records on all of its performers. The complaint in relation to 2257 is two-part: PornoTube does not have records on the actors and actresses in republished copyrighted videos—which Vivid says is a violation of 2257 itself. But the company says that it also gives PornoTube a competitive advantage because they do not have to incur the same costs to maintain such records. "Vivid spends enormous sums to copyright its content and to comply with the Child Protection and Obscenity Enforcement Act age verification process. PornoTube and AEBN have been getting away with a practice that unlawfully earns it millions of dollars at our expense," said Vivid co-chair Steven Hirsch.

The case marks the first of its kind in the adult industry, which has been suffering at the hand of the Internet over the last several years. The (estimated) $50 billion industry argues that some 80 to 85 percent of porn on the 'Net is pirated, which could translate to huge losses if those individuals would have otherwise purchased their favorite XXX titles instead.

One detail of interest is that AEBN advertises itself as a customer of Vivid—the company sells pay-per-view versions of several of Vivid's movies through its web site. This tactic isn't particularly new—the RIAA and MPAA practice it often—but it could open the door for more regular suits against file-sharers over their porn habits. In fact, another major porn producer makes no secret of that exact plan. Red Light District vice president Jon B. told the L.A. Times that the company is seriously considering suing individual downloaders for piracy: "If it scares them enough, if it can take away 20% of the illegal downloads, we'll be doing the best that we can," he said.

Vivid has asked for a jury trial and a permanent injunction against PornoTube's parent companies to prevent them from engaging in further infringement. The company also notes that the law provides up to $150,000 per willfully infringed work, which it says amounts to some $4.5 million in damages.

Jacqui Cheng
Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui